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October 31, 2018
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Top legal brains point out NAB law clauses for review

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October 31, 2018

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ISLAMABAD: As the government and opposition are inching close to forming a joint committee to review the National Accountability Ordinance (NAO), noted lawyers have identified its austere clauses that need reconsideration to make it a normal law.

During separate chats with The News, these legal minds including Wasim Sajjad and Ikram Chaudhry set the agenda of the upcoming parliamentary committee for deliberations. The 20-member body is likely to have 13 members of the National Assembly and seven senators.

The senior attorneys said the draconian provisions need drastic amendments, following the letter and spirit of the Constitution, so that nobody is hit by the severe clauses. “The 90 days’ remand is too much, too long while in even murder cases this period spans only 14 days; such an extended period runs counter to the rule of law,” eminent constitutional expert Wasim Sajjad said. He said it was unjustified to keep someone in custody for 90 days without filing any reference and then shifting him to jail after finding nothing concrete against him. “In cases of white collar crimes, the maximum remand period may be 30 days but not three months at any cost.”

The lawyer said another clause relating to the “misuse of authority” is flawed. “If an officer takes a wrong decision but in good faith, without mala fide or for any pecuniary benefits,how can it be called misuse of authority?” he asked and stressed that this provision requires substantive amendment.

Wasim Sajjad pointed out that the clause regarding the plea bargain needs to be scrapped. “Arrested accused persons are subjected to pressure to which they yield and agree to the plea bargain.” Another section of the NAO that, according to the lawyer, which should be regulated pertains to the NAB chairman’s power of arrest. “It has been left to the NAB chief to order arrest of someone while not apprehend the other. This leads to arbitrary use, which is against the Constitution.” While the NAB did not arrest Nawaz Sharif, Babar Awan, Yousuf Raza Gilani, Raja Pervez Ashraf and some other political figures although subsequently references were filed against them, Shahbaz Sharif was caught despite the fact that no case was made out against him. The power to order arrest vests in the NAB chairman.

Wasim Sajjad mentioned Article 10-A of the Constitution that says for the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process. “When the basis of trial is not fair, it can’t be fair. The NAB law should be effective but fair,” he said. He cited Article 4, which covers right of individuals to be dealt with in accordance with law. It too has to be followed, he said.

Wasim Sajjad said in criminal law a person is presumed to be innocent unless proven guilty. The onus establishing guilt has to lie with the prosecution, he said, adding the relevant clause of the NAO also needs to be amended. “Sentencing on the basis of presumption requires to be looked into.” Similarly, he said, the provision regarding refusal of bail to a person arrested by the NAB should also be reviewed.

Senior lawyer Ikram Chaudhry said 90 days remand given in piecemeal is no doubt against the concept of fair trial. “A few provisions of the NAB and some practices followed by NAB are in contradiction of basic human rights and constitutional guarantees given to the citizens. Arrests should not be made without having some basic evidence. The basic issue is that many of the NAB investigators are incompetent, dishonest and politicised. Investigation is mostly very weak.” He said the NAB chairman’s power to arrest any citizen was inserted in the NAO 1999 by Pervez Musharraf with a dictatorial mind. It must be regulated and there must be clear SOPs (Standard Operating Procedures) for its use, he proposed.

Ikram Chaudhry said those not involved in making money through corrupt means should take stand and should not accept pressure of NAB officers for plea bargain. He said if NAB officers have complete evidence, they must recover full plundered money instead of retrieving a percentage. The lawyer said the allegation of ‘misuse of authority’ is a very delicate thing. Officials at times make decisions which cause losses to the national exchequer or harm the national interests, he said, adding even if the money is not involved, such decisions are considered as ‘corrupt practice’. He said the allegations should be proved with strong investigation through evidences.

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